United States v. Mae Ethel Walker

The government appeals from the district court’s order granting defendant’s motion to suppress drugs found by an airline employee in a post-flight search on May 9, 1977, of a package shipped by commercial airline.

The district court, relying on United States v. Fannon, 556 F.2d 961 (9th Cir. 1977), rehearing en banc granted January 27, 1978, held that the airline employee was fulfilling a governmental function when he searched the package, that Fourth Amendment reasonableness standards applied, and that because the search was unreasonable its fruits must be suppressed. We reverse.

Our decision today does not require that we evaluate the correctness of the panel opinion in Fannon which is now before an en banc court. We hold that, even assuming Fannon to be the law of the circuit, its principles should not be applied retroactively to searches conducted before July 5, 1977, the date of the Fannon decision.

We are guided in our decision by the principles announced by the Supreme Court in United States v. Peltier, 422 U.S. 531 , 95 S.Ct. 2313 , 45 L.Ed.2d 374 (1975), concerning the retroactive effect of decisions triggering new applications of the exclusionary rule. Peltier…